BOARD01446

• Board Meeting Date: 1/26/2000
• Description: Colorado River Basin Issues - Endangered Fish Recovery Goals
• Board Meetings - Doc Type: Memo

Third, while some of the Western States continue to litigate Indian water issues, others have
had success or made progress in negotiating Indian water rights settlements. Regardless of the
approach taken, all Western States agree that the Working Group's recommendations are likely to
hamper settlements and promote further litigation between States and Tribes. For example, some
of the recommended policy changes would limit the flexibility the States and Tribes have to reach
the compromises necessary to achieve water rights settlements. All Western States question
whether the recommendations, as currently drafted, fix the perceived problems or merely make
matters worse. The Western States are confident that this is neither the Working Group's nor the
Secretary's desire, but are concerned that this would be the direct result of implementing many of
the recommendations.

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Fourth, all Western States agree that the draft report deals with sensitive political topics and
extremely complicated legal issues. The States are troubled that the Interior Department would
attempt to address such volatile issues within such a short time period and with so little opportunity
for the States in which the Indian reservations are located to provide input. Many state water
officials did not receive the draft report until very recently and most Western States do not have
extra personnel to fully respond in a short time frame to lengthy reports that surface unexpectedly.

Finally, many of the Working Group's recommendations are too vague. Unfortunately, the
problem of vagueness is a persistent theme throughout the draft report. Here are just a few
examples to illustrate the States' concern.

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1.

The report purports to address both water quantity and water quality issues; however,
the draft report fails to explicitly address any water quality issues.
The Working Group's written explanations of its objectives and recommendations
often allude to issues that are not readily apparent based upon a reading of the
recommendations. For example, Recommendation 4.C generally mentions creating
"financial incentives" for Tribes, but the Working Group's explanation goes several
steps further and mentions "water marketing" in passing as ifit is one of the financial
incentives the draft report may be advocating. If the Working Group is a proponent
of water marketing, it should state its position clearly in its recommendations rather
than relegating such an important issue to vague references in an explanation.
The Working Group's Objective #2 states that environmental baselines used in
Section 7 consultations should address the "future possible exercise ofIndian water
rights." However, as the Fish and Wildlife Service also points out in its October 1,
1999 comment letter criticizing the draft report, the Working Group fails to describe
how to evaluate any impacts that might be caused by "future possible uses" of
reserved water rights as part of the environmental baselines.

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3.

As a result of these vague objectives and recommendations and many other vague references
in the draft report and explanations, the States found it difficult to ascertain the breadth and scope

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